What is wrong with Falkvinge’s copyright critique

strawman

My social media timeline is filled with links to an article on Torrent Freak by Rick Falvinge, the founder of the Swedish Pirate Party. The article is entitled “The Entire Copyright Monopoly Idea is Based on a Lie“.  The article sets out to criticise the social contract that gives copyright its power, concluding that those who violate their contracts should have them revoked.

The post has proved to be wildly popular, it’s one of those “gotcha” moments where it is proven that an entire legal structure is built on a lie. But the article is based on a misunderstanding of the justifications for copyright, a misreading of the nature of the social contract, and a baffling misuse of Creative Commons. I was tempted to say that Falkvinge’s argument is based on a lie, but I usually try to assume ignorance instead of bad intentions, so I am giving him the benefit of the doubt.

The article actually starts by correctly talking about the Statute of Anne 1710, which gave origin to modern copyright. Falkvinge accurately describes that copyright began as a right for publishers and not authors. So far, so good. But then the article creates a handy strawman by implying very strongly that modern copyright law is a direct descendant of the Statute of Anne, and that it maintains its publisher-centric approach. This is simply not true, as it completely ignores that for most of the world the system of copyright is descended not from the Statute of Anne, but from the concept of droit d’auteur which places the author at the heart of copyright. It is droit d’auteur which strongly influences the Berne Copyright Convention, which is the cornerstone of our system of protection.

Based on the above, Falkvinge builds a social contract that simply does not exist. This social contract reads:

“In return for providing the only service that can make culture come into being for the benefit of the public, the publishers and distributors are awarded with time-limited exclusive rights.”

In all of my years I have not read a single postulation of the justification for the existence of copyright in this manner. The closes that I can think of is the Copyright Clause in the US constitution, which is a very different type of contract. It reads:

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

This is not the exclusive monopoly for publishers that Falkvinge’s contract postulates. There are many justifications for copyright law: moral rights, natural rights, copyright as a reward, copyright as an incentive, etc. I could provide a long list of writing on the subject, this article by Hettinger is still a classic. Heck, just check the bibliography in this Wikipedia article on the subject! The key point is that the entire edifice does not rely at all on the made-up social contract that nobody has ever heard of.

But even if this social contract existed, Falkvinge gives us some dubious reasons to abolish it. He says that:

“With the advent of the Internet, we see that people are creating despite these exclusive rights, this monopoly, instead of because of it. Millions of creators – millions! – have publicly renounced their already-awarded exclusive rights by publishing under a Creative Commons license.”

This is highly inaccurate. People who publish and distribute their works under Creative Commons are using copyright to licence those works. Licence means to give others permission to use the work, it does not mean that they renounce their copyright! And even if people were renouncing their works, in some jurisdictions they cannot do it as copyright is considered a fundamental personality right that cannot be given away (I have written a report about this). Falkvinge may be thinking about CC0  which is a dedication into the public domain and a full licence where applicable, but then he should have stated it clearly.

Finally, there is a strange confusion running through the article that really bothers me.  On the one hand he claims that copyright is a monopoly, an exclusive right given to publishers. On the other hand, authors are giving away their works and renouncing copyright on their own accord. Both cannot be true, Falkvinge is trying to have his cake and eat it. Copyright is either an exclusive monopoly held by publishers, or it is a right for authors. In reality it is an author’s right with some provisions for publishers and intermediaries, the problem is that the article relies on a limited reading of copyright that stops at the Statute of Anne and ignores everything else.

Concluding

Anyone who has ever read anything I’ve written will know that I’m no friend of the copyright industries. Copyright needs to be reformed. But we should not attack a strawman version of copyright because it will backfire on us. I imagine that copyright maximalists have read Falkvinge’s article and will be laughing with delight, it is such a misinterpretation of copyright that it may actually be used against us. “Behold! This is the level of discourse of those who want reform! We cannot listen to a bunch of misinformed amateurs and hobbyists!”

We need to criticise copyright without using strawmen arguments. I am heartened by the efforts of another Pirate, Julia Reda, who has given us a worthy banner to stand behind.

Thanks for reading, I now have to go and debunk all of those articles about how Taylor Swift saved the world.

Comments 10

  1. Very good article.

    You’re completely right that today’s copyright monopoly legislation has more than one origin. I tend to talk about the first origins on the timeline, but the Berne Convention (late 1800s) has been very formative and normative toward how the legislation looks today.

    At least three different origins of today’s legislation can be traced:

    – the British, dating back to 1557 and Queen Mary I and the London Company of Stationers (which was a reaction to the failed French capital punishment on using printing presses). First and foremost a political censorship mechanism, it also has the strongest commercial component.

    – the French-Continental, which is more concerned with so-called moral rights – and where it is called the *droit d’auteur*, the “author’s right”, instead of the publisher-centric “copyright”, and

    – the Scandinavia, which is most concerned with crediting the author: the *västgötalag* of the 13th century encodes what we’d phrase today as “credit where credit is due”.

    Today’s varying legislations are an amalgamation to various degrees and proportions of these three origins. However, you’d find it trivial to observe that the US – which is driving most harshening in this field worldwide – has a predominant proportion from the British origin, barely even recognizing moral rights and not joining the Berne Convention until 1989. Therefore, I’d argue that you’re flat out wrong when claiming that the predominant copyright monopoly models – as in those of the United States – are based primarily on the ideas of the Berne Convention. Tracing influences, the US code is almost entirely based on the British code.

    You’re right that today’s encoded justification for the exclusive rights can be found in Article 8 of the US Constitution (interestingly, most legislation don’t justify it at all). However, do remember that the events I describe predate the US constitution by the better half of a century. I’m also describing a social development, rather than legal text: the former is required to understand the framing of the latter.

    Also, while it is true that publishing under Creative Commons *does* rely on copyright monopoly legislation, you’d be hard-pressed to state that it doesn’t mean a relinquishment of already-awarded monopoly rights. If those same authors had just published, without mentioning Creative Commons or any license *at all*, they would have significantly stronger exclusive rights. Therefore, creators provably *do* go an extra effort to have *less* exclusive rights. Millions of them.

    It’s also noteworthy that most of these Creative Commons publications only concern themselves with credit, the Scandinavian origin, and not with the commercial monopoly – the British origin – at all.

    Cheers,
    Rick

  2. You are right that there are many justifications for Copyright – moral rights, natural rights, copyright as a reward, copyright as an incentive, copyright as helping censorship (the latter was an early British thing). So many different justifications, but for single thing – a monopoly!

    Lobbyist where always eager to sell copyrights to governments based on philosophic ideas that where popular at that time. Fun fact: John Locke was an opponent of the pre-Statute of Anne-copyright in England (he did not live long enough to raise concerns on the Statute). Yet his philosophy on natural rights is still used today as a pro-copyright argument.

    In Germany, copyright was introduced very late (in the mids of the 19th century) and it was a droit d’auteur from the very beginning. Yet still it was mostly publishers(!) lobbying for it. Publishers lobbying for author’s rights? At this point, the alarm bells should be ringing.

    Note: droit d’auteur or author’s rights are split into two parts – the moral rights and the economic rights. The latter can be transferred and the latter are the center of the current debate, they are what publishers actually lobbied for and what Rick is talking about. I doubt Rick would object removing the economic rights and keeping the moral rights untouched. Also, his CC argument still holds, since every CC license means that the author waives at least some of his economic rights but there is no CC license without a BY (except for CC0 of course).

    For centuries self-publishing was very hard, so the vast majority of authors sold the economic rights to their works to publishers putting the publishers at the center and making them the main profiteers of any of the different forms of copyright around the world. Nowadays plenty of work gets released on the internet without publishers as intermediaries, even waiving economic rights, debunking the old arguments by the publishers in favor of a copyright monopoly.

    1. Hi,

      My point is that copyright is not a monopoly. Only patents work as a monopoly because you are protecting an idea, which is much broader. With copyright you get protection for an expression of an idea.

      Publishers do not have a monopoly because since the 19th century copyright has been about author’s rights (moral and economic), with added protection for publishers. This means that there can be competing publishers.

      It’s true that for many years publishers were the gatekeepers of culture (which is not the same as having a monopoly). Nowadays authors all over the world have gained the power to become publishers, this blog is just another example of that. This is a well-documented phenomenon that is prompting a change to business models.

      This should also be translated into a change in legislation, which is why I agree with the Reda Review and the proposed change to copyright law to respond to an entire different market.

      But this does not mean that the social contract is broken, because our social contract does not rely on the Statute of Anne, it is more complex than that. In other words, for the most part current copyright law can work quite well with an author-centric approach (with some changes).

  3. “My point is that copyright is not a monopoly. Only patents work as a monopoly because you are protecting an idea, which is much broader. With copyright you get protection for an expression of an idea.”

    I don’t see a meaningful distinction between the two; both patents and copyright are monopolies, the former being a monopoly over the use of an idea and the latter being a monopoly over the expression of an idea.

    1. There is a huge difference, starting with the definition. Patents are defined as a monopoly right given by the State for 20 years over a novel idea. This means that I can stop anyone who tries to work my idea, which is one of the reasons why software patents are so toxic. The State awards this monopoly right in exchange for the patent owner disclosing the information for anyone skilled in the art to work the patent once it expires.

      With copyright you do not have a monopoly over an idea, say taking cat pictures. You can take a picture of your cat (expression of the idea), and you can stop anyone from using your picture. But you can’t stop me from taking a picture of my cat (my own expression of the idea). So copyright is more an exclusive property right than a monopoly. You could argue that it’s a mini-monopoly on your own picture, but in my view that is stretching the definition too much.

      1. “With copyright you do not have a monopoly over an idea”

        No, as I said previously, it is a monopoly over the expression of an idea. As you said yourself “You can take a picture of your cat (expression of the idea), and you can stop anyone from using your picture.”

        1. Calling that a monopoly is stretching the definition. I’m using the dictionary definition of monopoly: “the exclusive possession or control of the supply of or trade in a commodity or service.” My cat picture is too specific to be a monopoly in any meaningful sense.

          Moreover, we haven’t even talked about fair use / fair dealing. Take this blog post, it’s protected by copyright so I have an exclusive right over it. However, you can take chunks of it and cite it (extensively even). You can create a translation of it for the visually impaired. Depending on your jurisdiction, you can use it for parody, or for non-commercial educational purposes.

          If I have a monopoly, it’s a very weak one.

      2. “Calling that a monopoly is stretching the definition.”

        No, it precisely fits the definition that you have given. You claim that the cat picture is too specific, but nowhere is the need to be unspecific included in the definition of a monopoly that you have quoted. You’ve just added that requirement in yourself in an attempt to take what is clearly a monopoly and pretend it is not.

Leave a Reply